Citation NR: 9619540
Decision Date: 07/09/96 Archive Date: 07/22/96
DOCKET NO. 92-05 424 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased evaluation for postgastrectomy
syndrome, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amanda Blackmon, Associate Counsel
INTRODUCTION
The appellant served on active duty from September 1941 to
April 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana.
REMAND
The appellant contends that the RO erred in not granting the
benefit sought on appeal. He maintains, in general, that his
service connected disability has increased in severity and,
as such, warrants an increased rating evaluation.
In March 1994, the Board remanded this matter for further
evidentiary development. The Board noted the appellant’s
contentions concerning an etiological relationship between
his service connected disorder and the diagnosed iron
deficiency syndrome. An April 1995 VA general medical
examination report indicates that the appellant’s most recent
blood indices did not reflect any current anemia. It was
noted that the appellant complained of symptoms of
gastroesophageal reflux disease on several occasions. It was
noted that the appellant had not reported during the course
of his medical examination any history suggestive of “dumping
syndrome”. Regarding the Board’s inquiry concerning the
etiological relationship between the service connected
disability and the anemia, the examiner indicated that
gastrectomy is not an uncommon cause of iron deficiency
anemia. The RO denied entitlement to an increased evaluation
for the service connected disability in a September 1995
rating decision, but added anemia as a symptom of the
service-connected gastrointestinal disability.
Received in August 1995 were clinical records, dated from
March 1985 to July 1995. These records disclose that the
appellant was treated intermittently for gastrointestinal
symptomatology. A medical report, dated in March 1995, shows
that the appellant was treated on an emergency basis for
complaints of left-sided abdominal pain. Some tenderness in
the lower left quadrant, with voluntary guarding and
rebounding, was shown on examination. A clinical assessment
of acute diverticulitis was indicated
In correspondence, received in September 1995, the appellant
indicates that he continues to receive on going treatment for
symptoms related to his service connected stomach disorder.
He also referred to psychiatric symptoms. The Board observes
that clinical records, dated in January 1991, show that the
appellant underwent an upper gastrointestinal series for
moderate gastroesophageal reflux symptoms. The results of
this diagnostic study yielded diagnoses of status post
partial gastrectomy and gastrojejunostomy. On the 1995 VA
gastrointestinal examination, the radiographic evaluation
disclosed a hiatal hernia. The Board is unable to determine
whether the examiner reviewed the radiographic evaluation,
though it must be noted that hiatal hernia was not included
in the diagnoses reported.
In evaluating the appellant’s request for an increased
rating, the Board considers all of the medical evidence of
record, including the appellant’s relevant medical history.
Peyton v. Derwinski, 1 Vet.App. 282, 287 (1991). In so
doing, it is the responsibility of the Board to weigh the
evidence presented. Gilbert v. Derwinski, 1 Vet.App. 49
(1990). Manifestations of a nonservice-connected disorder
cannot be utilized in the evaluation of a service-connected
disability. 38 C.F.R. § 4.14 (1995). The RO in September
1995 apparently did not make any determination regarding the
relationship, if any, of the hiatal hernia, any
gastroesophageal reflux disease or diverticulitis to the
service-connected gastrointestinal disability. The recent
correspondence from the veteran and his representative
reasonably appear to suggest that the various
gastrointestinal diagnoses are interrelated. This matter
must be resolved by an independent medical assessment,
particularly in view of the provisions of 38 C.F.R. §§ 4.113
and 4.114 governing the evaluation of coexisting
gastrointestinal disorders. A claimant is not required to
specifically enumerate all bases for entitlement. See, for
example, Akles v. Derwinski, 1 Vet.App. 118, 121 (1991).
Therefore, secondary service connection must be considered
for a coexisting gastrointestinal disorder. 38 C.F.R.
§ 3.310; Allen v. Brown, 7 Vet.App. 439 (1995).
Another matter requiring further review is the rating scheme
for the veteran’s disability. His disability has been rated
as a psychophysiologic disorder since early 1964. The rating
schedule provides specific instructions for the rating of
such disorders at 38 C.F.R. § 4.132, following Diagnostic
Code 9511. The statement of the case and supplemental
statements of the case have not advised the veteran of the
rating considerations that have led to the singular rating
for the gastrointestinal component of the disability.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should contact the veteran and
request that he provide the names,
addresses and approximate dates of
treatment for all health care providers
from whom the veteran received treatment
recently for a gastrointestinal disorder.
With any necessary authorization from the
veteran, the RO should attempt to obtain
copies of any treatment records
identified by the appellant that have not
been previously secured.
2. The veteran should be afforded the
opportunity to submit competent medical
evidence that any diverticulitis, hiatal
hernia or esophageal reflux disorder is
related to the service-connected
gastrointestinal disability.
3. Thereafter, the veteran’s claims
folder should be referred to a VA
specialist in gastrointestinal disorders.
The specialist should be requested to
review the claims file and provide an
opinion as to whether any hiatal hernia
or gastroesophageal reflux disorder or
diverticulitis may be dissociated from
the veteran’s service-connected
gastrointestinal disability or whether
such disorders are of greater severity on
account of the service-connected
gastrointestinal disability. A complete
rationale should be offered for all
opinions and conclusions expressed. Any
consultations with other specialists
deemed necessary for a comprehensive
evaluation should be obtained.
4. Thereafter, the RO should undertake
any other indicated development and
readjudicate the issue on appeal to
include consideration, as applicable, of
the provisions of 38 C.F.R. §§ 3.310,
4.113, 4.114 and the principles set
forth in Allen v. Brown. The decision
should also reflect consideration of the
application of 38 C.F.R. § 3.321(b)(1) as
discussed in Floyd v. Brown, 9 Vet.App.
88 (1996).
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, a supplemental statement of the case
should be issued and the veteran and his representative
provided the applicable period in which to respond.
Thereafter, the case should be returned to the Board for
further consideration, if in order. By this REMAND, the
Board intimates no opinion as to the final outcome warranted.
No action is required of the appellant until he is notified
by the RO.
MARK J. SWIATEK
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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